Lawmaker wants state power over Board of Regents

PHOENIX — An Oro Valley Republican lawmaker wants to know whether he and fellow legislators can legally clamp down on the Arizona Board of Regents.

Rep. Mark Finchem said it’s clear the board is established by the Arizona Constitution. But Finchem said it appears the duties of the board — and perhaps even its makeup — are within the purview of lawmakers.

Finchem isn’t just speculating. He wants an informal legal opinion from Attorney General Mark Brnovich.

He told Capitol Media Services his request follows a series of disputes between board members and lawmakers, even including threats of litigation by the regents against lawmakers over issues like the level of state funding.

“Quite frankly, a lot of us have had it,” Finchem said. He said if Brnovich agrees, that paves the way for him to push for major changes in not only the regents but the university system as a whole.

This would not be Finchem’s first attempt to curb the board’s power.

Last year he proposed giving each university its own governing board. Finchem agreed to drop the proposal after he said board members showed some interest in working through issues — including the cost of instruction.

That clearly has not happened, at least not to Finchem’s satisfaction. So now he’s back to the point where he believes the legislators, as elected policymakers, need to step in.

The move comes as Brnovich is himself involved in his own lawsuit with the regents over their powers. In legal papers he filed in Maricopa County Superior Court in September, he contends the tuition the board has allowed the state’s three universities to charge Arizona residents violates a constitutional provision that instruction be “as nearly free as possible.”

Board members have yet to respond to the lawsuit.

Many of Finchem’s complaints about the regents, like the Brnovich lawsuit, revolve around that question of tuition. Finchem said the board has not been a good steward of public dollars.

Finchem said Arizonans got proof of that just this past weekend when Arizona State University fired football coach Todd Graham. Finchem was particularly miffed at reports that ASU is going to pay Graham close to $12 million to buy him out of his contract.

And Brnovich on Monday used the firing — and the payout — to underscore his contention that Arizona residents are being charged far too much.

“You’re telling me they can afford to make the football coach the highest paid employee, give him a $12 million buyout, but they can’t reduce or eliminate the athletic fee for students?” Brnovich said.

“Why are students being forced to pay athletic fees?” he continued. And Brnovich said it doesn’t stop there, with other special fees added for things like technology.

“Think about that: That $12 million payment is more than the combined $75 athletic fee that all the students are paying,” he said. “Where are the university’s priorities?”

Brnovich was originally investigating the legality of the regents’ policy of allowing those in the Deferred Action for Childhood Arrivals (DACA) program to attend college while paying in-state tuition if they meet other residency requirements. But that ballooned into a full-blown lawsuit on the entire tuition policy.

He charges the board has “dramatically and unconstitutionally” increased the cost of going to one of the state’s three universities by anywhere from 315 percent to 370 percent since the 2002 school year. On an annualized basis, he said, that computes out to 14.1 percent, “the third fastest rate of growth among all 50 states.”

Brnovich acknowledges some of that is likely due to lawmakers sharply decreasing the dollars supplied for higher education. In fact, legislative budget analysts have found that since 2008 alone state aid went from $9,648 per student to $4,098, even before the effects of inflation are considered.

But Brnovich said all that is legally irrelevant. He reads the Arizona Constitution to require the regents to base tuition for Arizona residents on what it actually costs to educate them above whatever aid comes from taxpayers.

What is happening instead, Brnovich charges, is the board has been using other improper factors, ranging from what other state universities charge to the availability of financial aid. He said the board is “essentially concluding that if students can borrow enough money, ABOR is cleared to charge it.”